JAGDISH Vs. MANGAL PANDEY

JUDGEMENT

(1.) The plaintiff has come up in Second Appeal. Admittedly a money suit was filed by the respondent against one Chingi and his son Dasai and in execution of the decree, their one-half share in some agricultural land having trees and bamboo clumps thereof were attached. The decree was passed by the Court of Small Causes and execution also took place in the same Court. Treating the trees and the bamboo clumps to be moveable property; being standing timber, the Court of Small Causes proceeded to put the same to auction and it was purchased by the defendant-respondents. The auction took place on 1-9-1958. Thereafter the present suit was filed on 15-1-1968 on the ground that the plaintiffs were not parties to the money suit and that without their knowledge the property has been put to sale. It was also alleged that the purchaser was trying to cut away the standing trees to which he had no right and on this ground reliefs were claimed for declaration that the auction sale in pursuance of the decree in Suit No. 21 of 1955 was a nullity and for a permanent injunction to restrain the defendant from interfering in the possession of the plaintiff over the land and the trees in dispute.

(2.) The suit was contested on the ground that the decree was rightly executed against the trees which were moveable property being standing timber and the Court of Small Causes was competent to execute the same.

(3.) Both the Courts below have dismissed the suit on the ground that the trees in question were standing timber and as such moveable property and the same could be proceeded against in the execution by the Court of Small Causes. It was also held that plaintiff's half share in the trees has not been touched and only the other half share of Dasai and Chingi has been put to auction. The plaintiff's right to the relief of injunction was also dismissed. Aggrieved by the said decisions the plaintiff has come up in Second Appeal and only a short question arises for determination as to whether the trees auctioned in execution of the decree were moveable or immoveable property. It is conceded that the Court of Small Causes at the relevant time was not competent to execute the decree against immoveable property.